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10/17/2010

The Controversy over Birthright Citizenship—Posner

Recently, as an aspect of growing hostility to immigrants to the United States fueled by our continuing economic crisis, questions have been raised concerning the desirability of what is called “birthright citizenship.” The term refers to awarding citizenship to everyone born in the United States (with a few very minor exceptions, such as the children of accredited foreign diplomats and of foreign heads of state on official visits to the U.S.), including the children of illegal immigrants whose sole motive in immigrating may have been to confer U.S. citizenship on their as yet unborn children. This rule—though thought by some (not by all) to be compelled by section 1 of the Fourteenth Amendment, which provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” but which in any event is codified in a federal statute which provides that “the following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof”—can indeed be criticized. “The Federation for American Immigration Reform estimates that 165,000 babies are born each year in the United States to illegal immigrants and others who come here to give birth so their children will be American citizens.” Kelley Bouchard, “An Open-Door Refugee Policy Has Its Critics,” Maine Sunday Telegram, June 30, 2002, p. 11A. There is said to be “a huge and growing industry in Asia that arranges tourist visas for pregnant women so they can fly to the United States and give birth to an American. Obviously, this was not the intent of the 14th Amendment; it makes a mockery of citizenship.’” John McCaslin, “Inside the Beltway: Rotund Tourists,” Wash. Times, Aug. 27, 2002, p. A7.

We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. That abuse provides an argument for abolishing birthright citizenship. A constitutional amendment may be required to change the rule, thoiugh maybe not, see Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity 116–17 (1985); Dan Stein & John Bauer, “Interpreting the 14th Amendment: Automatic Citizenship for Children of Illegal Immigrants,” 7 Stanford L. & Policy Rev. 127, 130 (1996), since the purpose of the rule was to grant citizenship to the recently freed slaves and the exception for children of foreign diplomats and heads of state shows that Congress does not read the citizenship clause of the Fourteenth Amendment literally. If birthright citizenship is not commanded by the Constitution, it can be eliminated by amending the statutory provision that I mentioned.

But closing the loophole that encourages foreigners to come to the United States solely to make their future children U.S. citizens would not address the larger question of birthright citizenship. For undoubtedly most children born in the United States to illegal immigrants are not born to persons whose motive for immigrating was based in whole or significant part on a desire to have U.S. citizen children.

Most countries outside the Western Hemisphere do not recognize birthright citizenship; instead they base citizenship of children on the citizenship of their parents or other lawful connections between the parents and the country (ethnicity or religion, for example). Should we adopt that approach, by constitutional amendment if necessary? (It may not be necessary, as I have suggested, but I take no position on that question.) The problem is that though it would discourage people from coming to the United States for the sole or main purpose of having children who would be U.S. citizens, it would probably on balance increase the size of the illegal immigrant population. The United States, at least when the economy is healthy, is a magnet for illegal immigrants, most of whom manage to avoid being deported. Their children born here are U.S. citizens despite the parents’ illegal status. If birthright citizenship were abolished, these children would not be U.S. citizens, at least not automatically as at present. Nor would their children. One would have, as in some European countries, generations of illegals—persons who had never lived anywhere else, who could not feasibly be deported (and to where?—the country of origin of their grandparents, a country with which they had no connection, and the language of which they did not speak?). If many illegal immigrants do not become well assimilated in the United States (many do, however), at least their children born here probably do. And that is a considerable benefit to the nation that eliminating birthright citizenship would undermine, perhaps eliminate.

If most illegal immigrants were deported within a few years of their arrival in the United States, the problems created by birthright citizenship would largely disappear; if the parents had children born here, still they would be young children and the parents would bring them back home with them when they were deported and most of these children, grown to adults, would not come to live in the United States though entitled to do because they were U.S. citizens. But illegal immigration to the United States has overwhelmed the resources that the political process is willing to allocate to exclusion and deportation (given demand by U.S. employers for immigrant labor, legal or not), and as a result many illegal immigrants have children who grow to maturity in the United States and know no other country. For to be illegals would create what in Europe is called a “helot” population, helots in ancient Greece having had an ill-defined intermediate status between slaves and free citizens.

Concern with birthright citizenship is probably misplaced, because the most serious problem of U.S. immigration policy is not who should be excluded but who should be admitted, and that problem should be tackled first. We are handicapping our growth by refusing to allow easy admission of those immigrants who are most likely to foster economic growth by virtue of their IQ, skills, or wealth. Instead we continue to emphasize lotteries and family-reuniting as the principal criteria of lawful immigration.

Once again, a blog which adds nothing to a legitimate debate. What is the significance of the terms "and subject to the jurisdiction thereof"? If those born in the U.S. are subject to our lawful jurisdiction, as a corollary they should also possess the rights of citizenship. There is no real evidence that immigrants, illegal or otherwise, have caused any negative consequences to our economy. Instead, study after study confirms that most of such immigrants are employed in low wage occupations which significantly benefit our economy. Suggesting that only those wealthy enough to "buy their way in" or that we should encourage for our own selfish interests to encourage the trained and educated professionals of other nations to immigrate to this country defies our history. America was built on the backs of poor and disenfranchised immigrants. The suthors of these blogs contribute nothing by their arrogance and ignorance of the issues.

Wonda,
The deserving parties are the parents and grandparents who have contributed to the existing wealth of the United States. They deserve to see that wealth passed down to their children, not to the children of those who enter the country illegally. And even if the term "deserving" is too subjective or value-loaded to allow for consensus, the incentives created by birthright citizenship provide alternative grounds to oppose it -- birthright citizenship can undermine the extent to which individual citizens accept our system for pooling and reallocating valuable resources. A citizenry that sees its tax contributions flow to free-riders is discouraged from contribution, which manifests in increased opposition to and subversion of redistributive programs.

Judge Posner writes: "But closing the loophole that encourages foreigners to come to the United States solely to make their future children U.S. citizens would not address the larger question of birthright citizenship. For undoubtedly most children born in the United States to illegal immigrants are not born to persons whose motive for immigrating was based in whole or significant part on a desire to have U.S. citizen children."

Most lawyers and judges (certainly Posner himself) recognize that the adverb "undoubtedly" reflects an opinion expressed by an advocate who is unable to marshal specific evidence to support his position, and consequently seeks to employ rhetoric as a substitute means of persuading the audience.

Not because of change garments according to the season is not without distance without looking for you, Not because of you, Not from a busy and time and forget you, In the autumn is strong, I sincerely wish to you.

While the authors of the 14th Amendment may have been primarily concerned with legitimizing the legal status of recently freed slaves, they may also have considered it economically desirable to promote population growth by making it easy for people to become citizens. Arguing that the authors of this amendment never intended it to encourage people to come here just to give birth to citizens assumes either that they did not wish to encourage it or that they did not consider it technologically feasible in large numbers. The latter is certainly possible since the non-existence of air travel and the high cost of ocean transport limited access of that type. The former is more likely, in my view, as these people were in the process of building a great economic power that needed chep labor. As our demand for labor has changed, so too has our commitment to the 14th amendment.

Why are well assimilated immigrants better than their not being here at all? If they’re all going to become productive citizens (e.g. engineers, doctors, lawyers, businesspeople, teachers, artists, etc.) then I see Judge Posner’s point. But that presumes a good educational base that not only provides a solid academic foundation, but aids the assimilation through transmitting culture and values. Do we actually have that? Are we putting the necessary resources into public education to accomplish this goal?

And what’s wrong with reuniting families? Or giving preference to political refugees. Isn’t that the way a moral nation should conduct its immigration policy? At least in part?

If you dont want people to come to USA just to give birth for the sake of citizenship I am sure the government can work something out. But the question is how you can distinct between people who are here to give birth or who are here for real reason? Its almost like marrying for a green card dilemma.

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